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While the 10th Amendment should be enough, the courts have long refused to enforce it. While I agree that the proposed 28th Amendment is weak, it is still something the States, which before could only act by calling a constitutional convention, could finally do themselves, without relying on the federal government to protect their rights from the federal government. Which, let’s face it, is not going to happen.

Yet I think that the 28th Amendment would open the door to a 29th Amendment, creating the Second Court of the United States, which would be a continual check on federal power, as well as a standing “trimming” mechanism to reduce federal overreach.

The Second Court of the United States is *not* a federal court. It is a “convention of State courts”, 100 State judges appointed by State legislatures, that decides *not* constitutionality, which is a function of the federal courts, but *jurisdiction*, whether a case should be in the federal court system in the first place.

It addresses the 8,000 or so cases appealed from the federal District Courts to the Supreme Court every year, so it can determine that many of those are not federal issues, and should be returned to the States. And this takes advantage of the situation that the SCOTUS cannot possibly hear 8,000 cases every year.

Right now, the overwhelming majority of these cases are rejected by the SCOTUS, which means they are stuck with the decision of the federal District Courts, for better or worse, often worse.

But this *also* means that the federal “taking” of these cases was right in the first place. A huge expansion of federal power, because any federal judge, on the flimsiest of reasons, can take over a State case and make it a federal case.

But if those cases go through the Second Court of the United States, three things might happen.

Either they will agree that it is a federal issue worthy of the SCOTUS, which would probably reduce the 8,000 to just a few hundred cases, a much more manageable load for the SCOTUS; or they will say that it is a case for State, not federal jurisdiction, and return it to the State court.

If it is then not appealed, it is taken out of the federal courts entirely. If it *is* appealed, even with a few hundred cases, it will likely *not* be heard by the SCOTUS.

But the “default” in this case is *not* to uphold the decision of the District Courts, or that it is a federal decision, but to uphold the decision of the Second Court.

That is, taking the case out of federal jurisdiction and returning it to the State of origin. If it is a federal issue, only then will it be given back to the federal District Courts, for their default decision.

You see the slam dunk, here? Vast amounts of State authority returned to the States, taken from the grasp of federal judicial activists.

But it gets even better, because the Second Court of the United States would have *original* jurisdiction of lawsuits between the States and the federal government.

Right now, if a State sues the federal government, or the feds sue a State, the case has to go through a long and expensive process, taking years, and will likely have to be heard by the District Courts or the SCOTUS anyway, unless one side or the other quits.

But with the Second Court, a State could confront an onerous federal law, bureaucratic regulation, executive order, unfunded mandates, etc., by suing the federal government, and the case would go directly to this “convention of State judges”, giving all the other States the opportunity to join with this rejection of federal oppression, so it doesn’t have years to oppress them before being overturned.

Now granted, such suits could still be appealed to the SCOTUS, but this is good, as it would prevent anti-federalism from running wild, either.

The end result would be an institution whose very purpose is both to question, and trim, the growth of the federal government, in an active way. Not just cutting back on the rate of growth, but of existing growth as well.

A slow and methodical erosion of unauthorized federal power grabs over the last 150+ years. Unlike a static rule that everyone tries to evade, an active body that will fight for States rights.

I’ll also add that Justice Thomas just wrote a brilliant resurrection of the 14th Amendment, and how it authorizes the federal government to protect the people from abusive States. This Second Court of the United States would be the flip side to that, authorizing the States to protect the people from an abusive federal government.

Thus fitting in with the philosophy of constitutional balance of power.